Daughters have coparcenary rights from birth under the amended Hindu Succession Act, but prior partitions before the cutoff date are not invalidated, upholding their validity.

JUDGMENT :

RAVI V HOSMANI, J.

Challenging judgment and decree dated 02.11.2022 passed by Senior Civil Judge, Kundapura, in R.A.no.7/2017 and judgment and decree dated 08.11.2016 by Principal Civil Judge and JMFC, Kundapur, in O.S.no.84/2009, this second appeal is filed.

2. Sri Shivarama Bhat O., learned counsel for appellants submitted that appeal was by plaintiffs in O.S.no.84/2009 filed for partition and separate possession of suit 'A' Schedule Properties. In plaint, it was stated that plaintiffs and defendants no.1 to 7 were governed by Hindu Mithakshara Law of inheritance and that 'A' Schedule Properties were ancestral joint family properties belonging to Narayana Hebbar - Propositus. It was stated that Narayana Hebbar through his wife - Seethamma had 4 sons and 3 daughters. In October 1986, Narayana Hebbar died. On his death, 'A' Schedule Properties held by Narayana Hebbar were required to be divided into 8 shares i.e., his wife and 4 sons and 3 daughters. It was stated that though they had demanded partition, defendants' brothers kept on postponing same. Ultimately, plaintiffs came to know that by a registered partition deed on 04.11.1986, properties were partitioned between Seethamma and his sons only leaving plaintiffs -daughters. Immediately on realising same, suit was filed.

3. On appearance, written statement was filed admitting Narayana Hebbar as Propositus and properties held by him being ancestral joint family properties. It was however stated that partition had already taken place on 04.11.1986 under a registered deed of partition and same was prior to amendment to Section 6 of Hindu Succession Act, 1956 by Amended Act, 2005 and cut-off date mentioned in proviso to Section 6 i.e. 20.12.2004 and therefore, plaintiffs did not have any right. Thereafter, plaintiffs filed rejoinder.

4. Based on pleadings, trial Court framed following:

ISSUES

1) Whether the plaintiffs proves that the suit 'A' schedule properties are joint family properties of plaintiffs and defendants No.1 to7?

2) Whether the plaintiffs prove that the partition deed dated 04-11-986 is not binding upon them?

3) Whether the plaintiffs prove that the alienation in respect of item No.9 to 18 in favour of defendants No.8 to 16 as stated in para 4 of the plaint is not binding upon them?

4) Whether the plaintiffs are entitled for 3/8^th share in the suit schedule properties?

5) Whether the plaintiffs are entitled for 3/8^th share out of the income from the 'A' schedule properties?

6) What order or decree?

ADDITIONAL ISSUE FRAMED ON 08-08-2012:

1) Whether the defendant No.10 proves the Will dated 05-06-2008 said to be executed by late Smt.Manjula Hebbar in favour of Mr.Chandrashekar Holla?

5. On behalf of plaintiffs, plaintiff no.1 was examined as PW.1 and got marked Exhibits-P1 to P29. While on behalf of defendants, defendant no.10 along with 4 others were examined as DW.1 to DW.5, but no documents were marked.

6. On consideration, trial Court answered issues no.1 to 5 and additional issue no.1 in negative and issue no.6 by dismissing suit. Aggrieved, plaintiffs' preferred R.A.no.7/2017 on various grounds. Based on which, first appellate Court framed following points for its consideration:

1) Whether the plaintiff proved that they are in joint possession of A suit schedule properties?

2) Whether the plaintiff proved that the partition deed and various sale deed right from 1987 and till 2008 effected amongst the defendant No.12 to 16 deed are not binding on them?

3) Whether the plaintiff is entitle for the relief which they sought in the plaintiffs?

4) Whether suit is hit by point of limitation?

5) Whether impugned judgment of trial Court is required to be set aside or calls for any interference?

6) If so what order?

7. On consideration, it answered points no.1 to 3 and

5 in negative; point no.4 in affirmative and point no.6 by dismissing appeal. Against concurrent findings, this second appeal was filed.

8. It was submitted, trial Court dismissed suit mainly on two grounds. Firstly, P